Author Michael Crichton, who died in 2008, achieved a unique blend of artistic, commercial, and financial success. A great storyteller, Crichton was also a futurist who dramatized the shock of new technologies.
Standouts include Crichton’s novel Jurassic Park, which gave rise to the franchise of the same name, and the genre-defining ER, which ran for 331 episodes over 15 seasons, based on Crichton’s experiences fresh out of medical school. Indeed, by 1994, Crichton’s industry stature was such that, in his ER series deal, Warner Bros. TV agreed to a highly unusual “freeze” provision whereby Crichton retained approval of sequels, remakes, spinoffs, and other future productions.
Fast Forward: ER vs. The Pitt
In late 2022, key ER alumni reached out to Crichton’s widow, Sherri, about rebooting ER. When negotiations broke down, though, these alums, backed by Warners, regrouped and went forward anyway, with an emergency room series they titled The Pitt.
In response, Sherri Crichton sued1, alleging that The Pitt is “the same show [as the ER reboot previously presented to her], with the same lead actor and the same producers, on the same network, just under a different name” – in violation of the contractual freeze. Despite the lawsuit, in January of this year, Warner-owned streamer MAX debuted The Pitt to both ratings success and critical acclaim.
Question of the Day
Does The Pitt violate Crichton’s frozen rights provision? That question is working its way through the courts. But is The Pitt getting a free ride on the ER brand? That’s the subject of this post, drawing on, among other things, unpublished data from research firm Parrot Analytics.
To put that question in context, first, let’s look at the television series environment in 1994, the year Warners and Crichton agreed to the freeze, versus today.
Subscriptions vs. Advertising
In 1994, when ER was launched, Warners was the production studio and NBC the broadcast network for the series. Since Warners and NBC were (and are) unrelated companies, the parties could freely negotiate license terms, based, for starters, on how much the series was expected to cost and how much advertising NBC expected to sell.
In 2025, though, streamer economics are driven much more by subscriptions than by advertising. Even with ad tiers in the mix, the key value drivers for streamers remain new customer signups and reduction of customer churn.
License To An Affiliate
Of course, the Warners studio and the streamer MAX are both arms of the same company: Warner Bros. Discovery, Inc. When the Warners studio licenses MAX, by definition, terms are not set at arm’s length. Rather, they are set by sibling companies whose executives ultimately report up the food chain to their common corporate parent.
When Warners licensed ER to NBC and other third party networks, channels, and services, Warners and Crichton were more or less aligned in relation to series upside. In 2025, when Warners (studio) supplies Warners (MAX), the same alignment isn’t there.
Purpose Of The Freeze
Per Sherri Crichton’s complaint, her husband Michael, via the frozen rights provision, sought to protect both his creative vision and his business interests. As to the latter, Sherri Crichton’s team asked Warners to present The Pitt to competitive streamers such as Netflix, Amazon and the like, but Warners didn’t do so. They wanted the series at MAX.
Did The Freeze Die?
In its court submissions, Warners has suggested that the freeze provisions were personal to Michael Crichton and died with him. The parties’ 1994 contract was only 4 pages in length and leaves much to the imagination. Maybe approval of creative direction was intended to be personal, given Crichton’s singular talent. But did Michael Crichton intend that his business approvals would die with him? In other words, was Crichton, a futurist, unconcerned with how future technologies might affect the future interests of future Crichtons? Sherri Crichton, on behalf of herself and their child, doesn’t think so.
The Pitt vs. ER: Different? Related?
In the litigation, Warners has focused on creative differences between The Pitt and ER. But from Sherri Crichton’s point of view, the issue might be more about general perception, about association in the public mind, about brand.
In the entertainment sector, the purpose of brand, of course, is to jumpstart audience engagement. Think Jurassic Park (1993), The Lost World: Jurassic Park (1997), Jurassic Park III (2001), Jurassic World (2015), Jurassic World: Fallen Kingdom (2018), and Jurassic World Dominion (2022), which, cumulatively, have generated more than six billion dollars at the worldwide box office. Each of these films ultimately derives in some way from Michael Crichton’s Jurassic Park novel. And while over the 30+ years of the Jurassic Park franchise, as characters, plots, storylines, settings, actors, writers, and directors have changed, the brand has lived on. That’s the value of brand.
Does The ER Brand Live On In The Pitt?
The Pitt was not titled ER World, or ER: Lost World, or ER: Fallen Kingdom. But does the ER brand live on through The Pitt? In other words, is ER driving initial engagement with The Pitt by at least some of the public? Does at least some of the public view The Pitt as somehow related to ER?
The Critics
For this post, I sampled reviews of The Pitt featured on Rotten Tomatoes, and the clear majority of them reference ER. Not only has word of a connection reached critics, but through critics, it has reached audiences, too. Incidentally, from my sampling, those reviews for The Pitt rarely reference other hospital dramas.
I did a proximity search in Google between the words / phrases The Pitt and ER, and the results similarly demonstrate an association that’s been made between the two. When viewers search The Pitt, they find connections to ER, and vice versa.
Parrot Analytics
I asked data analytics firm Parrot Analytics about shared viewership between The Pitt and ER. As controls, I also asked about shared viewership with four other medical dramas in the hospital subgenre. In response, my friends at Parrot sent me this chart, which has not previously been published:
Per Parrot Analytics:
Here we’re measuring the weekly overlap we see between users who stream any of these medical titles and users who stream The Pitt. Overlap between ER and The Pitt is 2 to 4 times larger than other medical dramas. On average, we see that 8% of those people watching ER also watched The Pitt during the same week.
Whether interest is moving from ER to The Pitt, or from The Pitt to ER, the association is undoubtedly contributing to audience engagement and, potentially, new customer signups and reduction of customer churn at MAX, which also streams ER.
Value Of A Title
Do this chart, and the brand association between The Pitt and ER, tell us how the lawsuit will come out? No. At this early stage, the factual record hasn’t yet been fully developed, and from the court filings I’ve seen, brand association, as such, isn’t yet in the case. But it strikes me that, in a basic way, this fight is about the value of brand. In the film and TV industries, the title of a feature or TV series can punch well above its weight. By succinctly conveying the essence of a production, it can save enormously on paid media.
It’s no surprise that Universal Pictures has branded the next film in its Michael Crichton-inspired franchise, for release in U.S. on July 2, 2025, as Jurassic World Rebirth. Could Warners have expressly branded The Pitt as an ER spinoff? With appropriate changes to names, places, backstories, etc., in The Pitt, yes, that branding could have worked. But did they benefit from an association with ER anyway? It looks that way . . .
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- Roadrunner JMTC LLC v. Warner Bros. Television, No. 24STCV21825, Westlaw (Cal. Super. 2025) [filed Aug. 27, 2024] ↩︎
Ezra Doner is an entertainment and copyright lawyer who focuses on the film, TV and other content sectors. He is based in New York and is admitted to practice in New York and California. He does not represent any of the parties in this matter.
donerlaw.com 